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Interpretation of definitions of project categories of annex I and II of the EIA Directive

Environment

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A great deal of additional information on the European Union is available on the Internet. It can be accessed through the Europa server (http://ec.europa.eu). ISBN 978-92-79-48090-4 doi: 10.2779/5854181 © European Union, 2015 Reproduction is authorised provided the source is acknowledged. Disclaimer: This guidance in no way creates any obligation for the Member States or project developers. The definitive interpretation of Union law is the sole prerogative of the Court of Justice of the EU.

Table of Contents

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INTRODUCTION ..................................................................................................5

2 APPROACH TO THE INTERPRETATION OF ANNEX I AND II PROJECT CATEGORIES OF THE EIA DIRECTIVE ...............................................8 2.1

Available sources of information .............................................................................. 8

2.2

The concept of ‘project’ ............................................................................................ 9

2.3

Key principles derived from the case law of the Court.............................................10

2.4

Screening .................................................................................................................12

2.5

Relationship between the EIA and SEA Directives ...................................................16

2.6

Relationship between the EIA and IED.....................................................................17

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INDIVIDUAL PROJECT CATEGORIES ......................................................... 18

3.1

Introduction ............................................................................................................18

3.2 Annex I projects referred to in Article 4(1) of the EIA Directive ...............................18 Annex I (1) ............................................................................................................................. 19 Annex I (2) ............................................................................................................................. 19 Annex I (3) ............................................................................................................................. 20 Annex I (4) ............................................................................................................................. 20 Annex I (5) ............................................................................................................................. 21 Annex I (6) ............................................................................................................................. 21 Annex I (7) ............................................................................................................................. 24 Annex I (8) ............................................................................................................................. 26 Annex I (9) .............................................................................................................................

27 Annex I (10) ........................................................................................................................... 29 Annex I (11) ........................................................................................................................... 29 Annex I (12) ........................................................................................................................... 30 Annex I (13) ........................................................................................................................... 30 Annex I (14) ........................................................................................................................... 31 Annex I (14) ........................................................................................................................... 31 Annex I (15) ........................................................................................................................... 31 Annex I (16) ........................................................................................................................... 32 Annex I (17) ........................................................................................................................... 32 Annex I (18) ...........................................................................................................................

33 Annex I (19) ........................................................................................................................... 33 Annex I (20) ........................................................................................................................... 33

Annex I (21) ........................................................................................................................... 35 Annex I (22) ........................................................................................................................... 35 Annex I (23) ........................................................................................................................... 35 Annex I (24) ........................................................................................................................... 35 3.3 Annex II projects referred to in Article 4(2) of the EIA Directive ..............................37 Annex II (1) Agriculture, silviculture and aquaculture........................................................... 37 Annex II (2) Extractive Industry ............................................................................................. 42 Annex II (3) Energy industry .................................................................................................. 43 Annex II (4) Production and processing of metals ................................................................ 45 Annex II (5) Mineral industry ................................................................................................ 46 Annex II (6) Chemical industry (Projects not included in Annex I) ........................................

47 Annex II (7) Food industry ..................................................................................................... 48 Annex II (8) Textile, leather, wood and paper industries ...................................................... 48 Annex II (9) Rubber Industry ................................................................................................. 48 Annex II (10) Infrastructure projects ..................................................................................... 48 Annex II (11) Other projects .................................................................................................. 54 Annex II (12) Tourism and leisure ......................................................................................... 55 Annex II (13) .......................................................................................................................... 57

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TABLE OF CASES .............................................................................................. 60

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1 Introduction The objective of Directive 2011/92/EU1 on the assessment of the effects of certain public and private projects on the environment (the Environmental Impact Assessment, or EIA, Directive) is to ensure that projects that are likely to have a significant effect on the environment are adequately assessed before they are approved. Before any decision is taken to allow such a project to proceed, the possible impacts it may have on the environment (either from its construction or operation) are to be identified and assessed. The Directive also ensures the participation of environmental authorities and the public in environmental decisionmaking procedures. In particular, members of the public concerned must be given the opportunity to comment on any proposal while all options are still open, i.e. before a final decision is taken by the competent authority on a request for development consent. When approving a project, the competent authority is required to take into consideration the results of consultations and to inform the public, notably on the measures envisaged to avoid, reduce or compensate for environmental impacts. The public must be informed of the development decision and can challenge it before the courts.

In 2014, the EIA Directive was amended.2 While the amendment did not change the project categories in Annex I and II to the Directive, it introduced changes that aim at better protection for the environment while at the same time reducing administrative burdens stemming from EU law, in line with the European Commission’s drive for smarter regulation. The amendments relevant for this document are mentioned herein. To this end, this document can be of help to Member States in transposing the amending Directive, due by 16 May 2017. Annex I and II to the Directive list the projects that fall under its scope. Projects listed in Annex I are those that have significant effects on the environment and which, as a rule, should be subject to a systematic assessment (Article 4(1) of the EIA Directive). Projects listed in Annex II do not necessarily have significant effects on the environment in every case; they should be assessed where Member States consider that they are likely to have significant effects on the environment (Article 4(2) of the EIA Directive). Pursuant to Article 4(2) of the EIA Directive, the determination of the likely significant environmental effect may be carried out through a case-by-case 1

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26, 28.1.2012, pp.1-21. 2 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, OJ L 124, 25.4.2014, pp. 1-18.

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examination, by setting thresholds or criteria, or by a combination of these methods, taking account of the relevant selection criteria in Annex III to the Directive. Member States have a measure of discretion in specifying certain types of projects that are to be subject to an assessment or in establishing the applicable criteria and/or thresholds. However, Article 2(1) of the EIA Directive limits that discretion by requiring that projects are to be subject to an impact assessment if they are likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment.3 The EIA Directive defines the term ‘project’ in Article 1. With very few exceptions, the EIA Directive does not provide definitions or other descriptions of the project categories listed in Annex I and II.4 Certain definitions, provided in other EU Directives or in international agreements, are explicitly referred to in the Annexes to the EIA Directive, and they are dealt with in section 3 of this guidance document, under the relevant project categories. Experience gathered in the application of the EIA Directive shows that, in practice, it can be problematic to decide if individual projects fall within its scope. This issue was addressed in the Commission reports of 20035 and 20096 on the application and effectiveness of the EIA Directive.

The objective of the present document is to reduce the uncertainty regarding the interpretation and scope of certain project categories listed in the EIA Directive. It seeks to do this by providing references to useful sources of information, in particular rulings of the Court of Justice of the European Union (the Court), thresholds and criteria applied by Member States, definitions given in other directives, and relevant guidance documents. This document refers to all the project categories listed in Annex I and II to the EIA Directive. However, guidance is only provided for those categories that have been subject to the Court’s deliberations or where there is relevant information available. When determining the scope of individual project categories, without prejudice to the interpretation provided in this document, readers should have regard to the wide scope and broad purpose of the Directive and its overall objective, which is to ensure protection of the environment and the quality of life. The document does not examine or discuss in detail the process for determining whether an environmental impact assessment is required (screening) for any of the projects listed in Annex II to the EIA Directive. This document does aim to assist the 3

Case C-72/95, Kraaijeveld and Others, paragraph 50; C-2/07, Abraham and Others, paragraph 37; C75/08 Mellor, paragraph 50; C-427/07, Commission v. Ireland, paragraph 41). 4 Exceptions include airports (Annex I (7) (a)) and express roads (Annex I (7) (b)). 5 Report from the Commission to the European Parliament and the Council on the application and effectiveness of the EIA Directive (Directive 85/337/EEC, as amended by Directives 97/11/EC) — How successful are the Member States in implementing the EIA Directive, COM (2003) 334 final, 23.06.2003 [http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1422441617501&uri=CELEX:52003DC0334]. 6 Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the EIA Directive (Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC), COM /2009/0378 final, 23.7.2009, [http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52009DC0378].

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competent national authorities and stakeholders to determine whether a specific project falls within the scope of the EIA Directive but not to prejudge whether Annex II projects have to undergo an environmental impact assessment.7 This document was prepared by the Environment Directorate-General of the European Commission, in collaboration with Member State experts in environmental impact assessment and strategic environmental assessment. This document represents the views of the Commission services and is not binding in nature. It is not meant to be definitive. The document may be revised in the future on the basis of further experience in the implementation of the EIA Directive and to reflect any future case law. It must be emphasised that it ultimately rests with the Court to interpret the Directive.

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Commission guidance on screening is available on the Commission’s environmental assessment homepage [http://ec.europa.eu/environment/eia/eia-support.htm].

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2 Approach to the interpretation of Annex I and II project categories of the EIA Directive

2.1 Available sources of information Rulings of the Court are the only source of definitive interpretation of European Union law. The EIA Directive has often been the subject of cases brought before the Court, and a number of cases have addressed the question of the definition, description or scope of individual project categories listed in Annex I and II. The Commission has published an overview of the most important Court rulings related to the provisions of the consolidated EIA Directive in Environmental Impact Assessment of Projects — Rulings of the Court of Justice.8 The Court rulings contain some key general principles that can usefully guide the interpretation of project categories listed in the EIA Directive, as well as the concept of ‘project’ itself. These principles are reviewed in section 2.3. For individual project categories, additional information derived from Court case law is given in section 3. The EIA Directive explicitly refers to other directives and international agreements. When this is the case, these are binding sources of definitions to be used when interpreting project categories in Annex I and II. In addition, given the wide range of sectors covered by the EIA Directive, many other directives and guidance documents at EU level deal with activities covered by, or contain definitions of terms included in, Annex I and II.

Definitions taken from these sources are not necessarily fully applicable for the purposes of the EIA Directive. The purpose and context of the various directives must be carefully considered because different acts of legislation may have different objectives that could in turn influence the scope and meaning of project classifications and definitions that they contain. Thus, a certain project classification in one directive may not necessarily precisely prescribe how the same project type is to be interpreted in the context of another directive.9 As stated by the Court (see for example Case C-227/01, Commission v Spain), EU law is to be interpreted by reference to the purpose and general scheme of the rules of which it forms part.

8

Environmental Impact Assessment of Projects — Rulings of the Court of Justice (2013), [http://ec.europa.eu/environment/eia/pdf/eia_case_law.pdf]. 9 See case C-486/04, Commission v Italy, paragraphs 43 and 44.

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In practice, however, sectoral legislation and other guidance documents can often provide useful reference information, especially, but not only, where more technical terms are concerned.10

2.2 The concept of ‘project’ Article 1(2) of the EIA Directive defines ‘project’ as: ‘the execution of construction works or of other installations or schemes, other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.’

‘project’

The jurisprudence of the Court provides a broad interpretation of the concept of ‘project’.11 However, in relation to the concept of ‘project’ and in particular of what constitutes an ‘intervention in the natural surroundings and landscape’, the Court has held that the renewal of an existing permit (to operate an airport) cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a ‘project’.12 The term ‘installation’ is not defined in the EIA Directive. A definition of this term is provided in the Industrial Emissions Directive13 (IED), but this definition is not considered to suit the purposes of the EIA Directive. ‘Installation’ in the sense of the IED means ‘means a stationary technical unit within which one or more activities listed in Annex I or in Part 1 of Annex VII [of Directive 2010/75/EU] are carried out, and any other directly associated activities on the same site which have a technical connection with the activities listed in those Annexes and which could have an effect on emissions and pollution’ (Article 3(3) of the IED). In comparison, the EIA Directive provides for a broader scope. Mobile installations — even though not mentioned explicitly in the EIA Directive — are considered to be covered by its provisions, as are temporary installations14.

When mobile or temporary installations have the characteristics (and associated impacts) of project categories included in Annex I and II to the EIA Directive, they must be subject to its requirements.15 Furthermore, when

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The Court, in case C-127/02, the Waddenzee case, used the definition of ‘project’ contained in the EIA Directive in a case related to the Habitats Directive. The approach taken in this paper is consistent with that taken by the Court in this case. 11 Case C-72/95, Kraaijeveld and others. 12 Case C-275/09, Brussels Hoofdstedelijk Gewest and others, paragraph 24; C-121/11, Pro-Braine and Others, paragraph 31. 13 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast), OJ L 334, 17.12.2010, p. 17– 119. 14 Moreover, Annex II(13), second indent, explicitly includes Annex I projects undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than two years. 15 Mobile installations should be considered for the purposes of the EIA Directive, among other things, with regard to their location.

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a mobile installation is moved elsewhere, the need for a new environmental impact assessment has to be considered. Moreover, there are types of activity that display the characteristics of more than one project category listed in the EIA Directive. These activities can be seen from different angles, depending on their technical characteristics, design or output, for example, biogas or biofuel projects.16 Practice shows that various project categories can be relevant, depending on the biogas project’s scope, in particular: • • •

Annex I, point 9 or 10, or Annex II point 11(b) (both cases where biogas results from waste treatment); Annex II, point 3(a), where biogas is used for electricity production; Annex II, point 10(a), where a biogas plant can be part of an industrial estate development project.

The definition of ‘project’ has been complemented by the Court, which concluded that ‘demolition works come within the scope of Directive 85/337 and, in that respect, may constitute a ‘project’ within the meaning of Article 1(2) thereof’ (C-50/09, paragraphs 86-107). The Court concluded that demolition works cannot be excluded from the scope of national legislation enacting the EIA Directive. Based on case law, and in order to ensure a high level of protection of the environment, the amended EIA Directive provides that the screening procedures and environmental impact assessments should take account of the impact of the whole project in question and, where relevant, demolition phases (Annex II A, point 1 (a), and Annex IV, point 1 (b) and 5(a)).

2.3 Key principles derived from the case law17 of the Court The purpose of the EIA Directive In rulings related to the EIA Directive, the Court has consistently emphasised the fundamental purpose of the Directive as expressed in Article 2(1), i.e. that those projects ‘likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects’.

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From a production perspective, biogas can either be the main output of an activity, or its by-product. In addition, from a construction and maintenance perspective, biogas production relies on infrastructure, for instance pipelines, storage facilities, etc. Therefore, to determine whether a biogasrelated project falls under the scope of the EIA Directive, it has to be thoroughly examined with due account taken of all relevant perspectives. 17

It should be noted that some of the rulings referred to in this document relate to Directive 85/337/EEC before amendments, while others relate to Directive 85/337/EEC as amended by Directive 97/11/EC. However, it is considered that the principles underlying these rulings and their conclusions are still applicable and useful for interpreting the Directive as amended.

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In Case C-420/11, Leth, paragraph 28, the Court stated that it follows from Article 1(1) and from the first, third, fifth and sixth recitals in the preamble to the EIA Directive that the purpose of that Directive is an assessment of the effects of public and private projects on the environment in order to attain one of the Union’s objectives in the sphere of the protection of the environment and the quality of life. The information which must be supplied by the developer in accordance with Article 5(1) of and Annex IV to the EIA Directive, and the criteria that enable Member States to determine whether small-scale projects — meeting the characteristics laid down in Annex III to that Directive, require an environmental assessment — also relate to that purpose. Wide scope and broad purpose The wording of the EIA Directive indicates that it has a wide scope and broad purpose. This has been consistently held by the Court. In Case C-72/95, Kraaijeveld and others, paragraph 31, the Court stated that ‘The wording of the Directive indicates that it has a wide scope and a broad purpose.

That observation alone should suffice to interpret point 10(e) of Annex II to the Directive as encompassing all works for retaining water and preventing floods — and therefore dyke works — even if not all the linguistic versions are so precise.’ The Court emphasised again the wide scope and broad purpose of the Directive in Case C-227/01, Commission v Spain, paragraph 46. Uniform interpretation, different language versions In Case C-72/95, Kraaijeveld and others, referring to previous case law, the Court held that the interpretation of a provision of Union law (at that time Community law) involves a comparison of the language versions. Where these versions diverge, the need for a uniform interpretation requires that the provision in question be interpreted by reference to the purpose and general scheme of the rules of which it forms part (paragraph 28).18 In this case, the Court concluded that the expression ‘canalisation and flood-relief works’ in point 10(e) of Annex II to Directive 85/337/EEC (before amendment by Directive 97/11/EC) must be interpreted as including works for retaining water and preventing floods, and consequently dyke work along navigable waterways (paragraph 35). This issue is again referred to in the Court’s ruling in Case C-227/01 Commission v. Spain.

The Court stated that it was not necessary in the context of those proceedings to give a ruling on whether all the language versions of point 7 of Annex I to Directive 85/337 (regarding ‘lines’ for long-distance railway traffic) used a term equivalent to the term tracks (‘vias’ in the Spanish-language version). Neither was it considered 18

It should be noted that this principle is general to Court practice and not specific to the EIA Directive.

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necessary to give a ruling on the compatibility with the Directive of Spanish legislation adopted to implement that provision inasmuch as it used the term lines (‘líneas’). However, it was clear from the Court’s case law that where different language versions of a provision diverged, the need for a uniform interpretation of Union law required that the provision be interpreted by reference to the purpose and general scheme of the rules of which it forms part (paragraph 45). The Court has also held that the need for uniform application and the principle of equality require that the terms of a provision of Union law, when it makes no express reference to the law of the Member State for the purpose of determining its meaning and scope, must take into account the context of that provision and the purpose pursued (Case C-287/98, Linster and Others, paragraph 43; Case C-260/11, Edwards and Pallikaropoulous, paragraph 29; Case C-531/13, Kornhuber and Others, paragraph 21).

2.4 Screening Projects listed in Annex II to the Directive are not automatically subjected to an environmental impact assessment. Member States can decide to subject them to an assessment on a case-by-case basis or according to thresholds and/or criteria (for example size), location (sensitive ecological areas in particular) and potential impact (surface affected, duration). The process of determining whether an assessment is required for a project listed in Annex II is called screening19. In determining thresholds or assessing the effects of projects, the relevant selection criteria set out in Annex III to the Directive should be taken into account. In particular, the screening process should not be based on one criterion only (e.g. size), but it should take into consideration all the relevant selection criteria listed in Annex III (e.g. not only size but also the location of the project). Consequently, as provided in Recital 10 of the EIA Directive, ‘Member States may set thresholds or criteria for the purpose of determining which of such projects should be subject to assessment on the basis of the significance of their environmental effects.

Member States should not be required to examine projects below those thresholds or outside those criteria on a case-by-case basis.’ Thresholds and criteria, set out in Member State legislation, should establish clear legal requirement on the need for an environmental impact assessment. For example, some countries set exclusive thresholds below which an assessment is not required. Others set indicative thresholds and criteria that do not establish a legal requirement but can be used to help case-by-case decisions on whether an assessment is required. Whatever method a Member State adopts to determine whether or not a specific project needs to be assessed — be it by legislative 19

For further information on the screening process see Guidance on EIA — Screening, 2001 [http://ec.europa.eu/environment/archives/eia/eia-guidelines/g-screening-full-text.pdf].

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designation or following an individual examination of the project — the objective of the Directive must not be undermined. As to the parameters used in thresholds, it can be concluded that the majority of Member States use,20 for example: - for power stations: capacity in MW; 3

- for landfills for non-hazardous waste: total volume (m ) or volume/day, tonnes/day or total capacity in tonnes; 2

- for shopping centres: area in hectares or m (area of development, gross floor space); and - for roads: length of road (in km).

The 2014 amendment of the EIA Directive introduced changes related to the screening but the approach on determining thresholds and assessing the effects of projects has been maintained. Firstly, the amendment provides that screening decisions (both ‘positive’ and ‘negative’) must be justified and state the main reasons for requiring or not requiring an assessment. This stems from the cases C-87/02, Commission v. Italy, and C-75/08, Mellor. Secondly, Annex III on the selection criteria, referred to in Article 4(3) of the EIA Directive, was updated. Thirdly, a new Annex II.A listing the information to be provided by the developer to the competent authority for the screening procedure was added.

Level of thresholds — type of criteria to be taken into consideration The EIA Directive confers a measure of discretion on Member States to establish thresholds and/or criteria pursuant to Article 4(2)(b) therein. However, this discretion is limited by the obligation set in Article 2(1) to make projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location subject to an impact assessment (C-244/12, Salzburger Flughafen, paragraphs 29-30), C-531/13, Kornhuber and Others, paragraphs 40-41). The criteria and thresholds are designed to facilitate examination of the actual characteristics of any given project in order to determine whether it is subject to the requirement to carry out an environmental impact assessment. A Member State that has established thresholds and/or criteria at a level such that, in practice, all projects of a certain type would be exempted in advance from the requirement of an impact assessment, exceeds the limits of discretion available to it. This is so unless all projects of that type could, when viewed as a whole, be regarded

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IMPEL report The implementation of the Environmental Impact Assessment on the basis of precise examples of 12.11.2012 compares EIA screening procedures in Member States of the European Union for four different types of projects: thermal power plants, landfills, shopping centres and road construction projects [http://impel.eu/wp-content/uploads/2013/01/IMPEL-EIA-Report-final.pdf].

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as not likely to have significant effects on the environment21. A Member States exceeds the limits of its discretion under Article 2(1) and 4(2) of the EIA Directive also in circumstances where it does not take into account all relevant selection criteria listed in Annex III22. For instance, in Case C-332/04, Commission v. Spain, by limiting the environmental impact assessment for urban development projects exclusively to projects located on non-urban land, the Spanish government had confined itself to applying only the criterion of location. This is just one of three criteria set out in Article 2(1) of the EIA Directive, and Spain had failed to take account of the other two criteria, namely the nature and size of a project. Moreover, insofar as Spanish law provided for environmental impact assessments only in respect of urban development projects outside urban areas, it had failed to apply the complete criterion of location. Indeed, densely populated areas and landscapes of historical, cultural or archaeological significance in points 2(g) and (h) of Annex III to the EIA Directive are among the selection criteria referred to in Article 4(3) of the Directive.

These criteria are to be taken into account by Member States in the event of a case-by-case examination or when setting thresholds or criteria for the purpose of Article 4(2) to determine whether a project should be subject to an assessment. These selection criteria relate more often than not to urban areas.23 In Case C-244/12, Salzburger Flughafen, paragraph 48, the Court considered the actions of a Member State, pursuant to Article 4(2)(b) of Directive 85/337, as amended by Directive 97/11, with regard to projects falling within the scope of Annex II thereto. The Court stated that when a Member State establishes a threshold that is incompatible with the obligations laid down in Articles 2(1) and 4(3) of that Directive, the provisions of Articles 2(1) and 4(2)(a) and (3) of the EIA Directive have direct effect. This requires that the competent national authorities must ensure that it is first examined whether the projects concerned are likely to have significant effects on the environment and, if so, that an assessment of those effects is then undertaken. In conclusion, it should be stressed that, pursuant to Article 4(3) of the EIA Directive, Member States are required, when establishing criteria or thresholds in question, to take into account the relevant selection criteria listed in Annex III to the EIA Directive24.

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Case C-392/96, Commission v. Ireland, paragraph 53; C-72/95, Kraaijeveld and Others, paragraph 53; Case C-435/97, WWF and Others, paragraph 38; Case C-392/96, Commission v. Ireland, paragraph 75; Case C-66/06, Commission v. Ireland, paragraph 65; Case C-427/07, Commission v. Ireland, paragraph 42. 22 C-392/96, Commission v. Ireland, paragraphs 65, 72; C-66/06, Commission v. Ireland, paragraph 64; C255/08, Commission v. Netherlands, paragraphs 32-39; C-435/09, Commission v Belgium, paragraphs 52, 55. 23 C-332/04, Commission v. Spain, paragraphs 75-79. 24 Case C-66/06, Commission v. Ireland, paragraph 62; Case C-255/08, Commission v. Netherlands, paragraph 33; Case C-435/09, Commission v. Belgium, paragraph 53; Case C-531/13, Kornhuber and Others, paragraph 42.

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Multistage consent procedure The Court has highlighted the difficulties raised by projects that are subject to multistage consent procedures25 and has reiterated the need to assess such projects as a whole. Where a consent procedure comprises more than one stage — one involving a principal decision and another involving an implementing decision that cannot extend beyond the parameters set by the principal decision — the competent authority is, in some circumstances, obliged to carry out an environmental impact assessment in respect of a project even after the grant of outline planning permission, when the reserved matters are subsequently approved.26 This assessment must be of a comprehensive nature, so as to relate to all those aspects of the project that have not yet been assessed or which require a fresh assessment. Exclusion of project splitting and ‘salami slicing’27 In the case law with regard to the EIA Directive, the Court has systematically stressed that the purpose of the Directive cannot be circumvented by the splitting of projects. Where several projects, taken together, may have significant effects on the environment within the meaning of Article 2(1) of the EIA Directive, their environmental impact should be assessed as a whole.

It is necessary to consider projects jointly, in particular where they are connected, follow on from one another, or their environmental effects overlap (see, to that effect, Case C-147/07, Ecologistas en Acción-CODA, paragraph 44; Case C-205/08, Alpe Adria, paragraph 53). Furthermore, in order to avoid misuse of EU rules by splitting projects that, when taken together, are likely to have significant effects on the environment, it is necessary to take into account the cumulative effect of such projects where they have an objective and chronological link between them (Case C-244/12, Salzburger Flughafen, paragraph 21). In its case law, the Court advocated a broad interpretation of the EIA Directive and rejected efforts to limit its scope. In Case C-227/01, Commission v Spain, the Court stated that a long-distance project cannot be split up into successive shorter sections in order to exclude both the project as a whole and the sections resulting from that division from the requirements of the Directive (paragraph 53). If that were possible, the effectiveness of the Directive could be seriously compromised, since the authorities concerned would need only to split up a long-distance project into

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Case C-201/02, Wells; Case C-508/03, Commission v United Kingdom; Case C-290/03, Barker. Case C-508/03, Commission v United Kingdom, paragraphs 103 to 106. 27 Salami slicing refers to the practice of splitting an initial project into a number of separate projects, which individually do not exceed the threshold set or do not have significant effects on a case-by-case examination and therefore do not require an impact assessment but may, taken together, have significant environmental effects (See COM/2003/0334 final [http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:52003DC0334]). 26

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successive shorter sections in order to exclude it from the requirements of the Directive (paragraph 53). A similar situation arises where an environmental impact assessment has not been carried out on a project that, in principle, is not subject to an assessment but it involves a modification or an extension that is indeed covered by the annexes to the Directive. This situation arose in Case C-2/07, Abraham and Others. In this case, the Court held that ‘works to modify an airport with a runway length of 2 100 metres or more thus comprise not only works to extend the runway, but all works relating to the buildings, installations or equipment of that airport where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself. That is the case in particular for works aimed at significantly increasing the activity of the airport and air traffic’ (paragraph 36). In this case, the Court came to its decision based on an overall assessment criterion and with a view to ensuring the effectiveness of the EIA Directive.

2.5 Relationship between the EIA and SEA Directives In its 2009 Report on the application and effectiveness of the EIA Directive,28 the Commission noted that, in theory, overlap should not be expected with regard to Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the Strategic Environmental Assessment, or SEA, Directive). However, various areas of potential overlaps29 in the application of the two directives have been identified. In particular, the boundaries between the definition of a plan, a programme or a project are not always clear, and therefore there may be some doubt as to whether the subject of the assessment meets the criteria for requiring the application of either one or both of the EIA and SEA Directives. In this regard, the definitions of some project categories, which often relate to land use, are not clear and this might create confusion with the SEA Directive. Different approaches have been chosen by Member States to address any potential ineffectiveness resulting from overlapping procedures. However, many Member States often consider that they do not have sufficient experience to identify and assess any overlapping issues properly. This is why very few Member States

28

Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the EIA Directive (Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC) (COM /2009/0378 final, 23.7.2009) [http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52009DC0378].

29

For instance, where large projects are made up of sub-projects; projects that require changes to landuse plans; plans and programmes that set binding criteria for the subsequent development consent of projects; and hierarchical linking between strategic environmental assessment and environmental impact assessment (‘tiering’).

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recommended consolidating the two directives. Many Member States underlined that each process should be preserved and distinguished, as these are complementary procedures addressing different stages and processes. Member States have also asked for guidance documents to be produced. In 2005, DG Environment commissioned a study on the relationship between the SEA and EIA Directives30. This study provides examples of possible ways for bridging the two assessments, and performing joint procedures specially devised to meet the requirements of both directives simultaneously. Last but not the least, it should be noted that Article 11 of the SEA Directive underlines that assessment under the SEA Directive is without prejudice to any requirements under the EIA Directive and any other Union law requirements. Therefore, in order to comply with the law, Member States must ensure they meet the requirements of both directives when they both apply.

2.6 Relationship between the EIA and IED The EIA Directive and the Industrial Emissions Directive (IED) sometimes relate to the same type of activities. However, it is important to be aware of the differences that exist between the objective, the scope, classification systems, and thresholds of these two directives. The IED lays down rules on integrated prevention and control of pollution arising from industrial activities. It also lays down rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole (Article 1 of the IED). For its part, the objective of the EIA Directive is to identify, describe, and assess in an appropriate manner, in the light of each individual case, the direct and indirect effects of a project on human beings, fauna and flora; soil, water, air, climate and the landscape; material assets and the cultural heritage; and the interaction between all these factors (Article 3 of the EIA Directive). Where project categories in the EIA Directive overlap with the activity categories in Annex I to the IED, these have to be interpreted by reference to the purpose and general scheme of the rules of the EIA Directive.

Member States have discretion to use the thresholds set by Annex I to the IED in the context of the EIA Directive, as long as they act within the limit of discretion set out in Article 2(1) of the EIA Directive. This requires that projects are to be subject to an impact assessment if they are likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment.

30

Imperial College London Consultants (August 2005) ‘The relationship between the EIA and SEA Directives’, [http://ec.europa.eu/environment/archives/eia/pdf/final_report_0508.pdf].

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3 INDIVIDUAL PROJECT CATEGORIES 3.1 Introduction The projects referred in Annex I and II must be interpreted in the light of the concept of ‘project’ (Article 1(2) and the general objective of the EIA Directive (Article 2(1)). The interpretations provided for project categories are based on the purpose of the Directive, the experience gathered in its application, and Court interpretations. The information in this section is intended to help provide a better understanding of project categories. As indicated above, most of this information derives from case law before the Court, EU directives, international conventions and guidance documents produced by the European Commission. It is clearly noted under each project category whenever these definitions are explicitly referred to in the text of the EIA Directive.31 In the case of other definitions, the reader is advised to consider carefully whether they can be applied as such to the scope of the EIA Directive. The objectives of the different pieces of legislation should be borne in mind, in light of the considerations set out in section 2 of this document. It should also be noted that the definitions provided in this section are not intended to constitute a comprehensive glossary of all terms contained in the EIA Directive, and long technical descriptions of industrial processes are deliberately avoided.

The reader is referred to the potentially useful sources of definitions available outside the field of environmental impact assessment, as indicated in the text. This section follows the order of the Annexes to the EIA Directive, but it does not give details on all project categories, nor does it provide an exhaustive interpretation. Nonetheless, the information given may also be useful to gain a better understanding of project categories that are not further explained.

3.2 Annex I projects referred to in Article 4(1) of the EIA Directive Pursuant to Articles 2(1) and 4(1) of the EIA Directive, and notwithstanding the exceptional cases referred to in Article 2(4), the environmental effects of projects falling under Annex I to the Directive must, as such and prior to authorisation, be evaluated systematically32. It follows that the Member States have no room for discretion in this respect.

31

For example, Annex I(7)(a) of the EIA Directive refers to the definition of ‘airport’ contained in the 1944 Chicago Convention setting up the International Civil Aviation Organisation. 32 See, to that effect, Case C-465/04 Commission v. Ireland, paragraph 45, and Case C-255/05 Commission v Italy, paragraph 52.

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Furthermore, if thresholds are assigned for Annex I project categories for which such thresholds are not envisaged, this would limit the scope of application of the EIA Directive33. Annex I (1) Crude oil refineries (excluding undertakings manufacturing only lubricants from crude oil) and installations for the gasification and liquefaction of 500 tonnes or more of coal or bituminous shale per day Annex I (2) (a) Thermal power stations and other combustion installations with a heat output of 300 megawatts or more The Court’s ruling in Case C-431/92, Commission v Germany, must be borne in mind when interpreting this project category.

Annex I (2)

Annex I, point 2 of the Directive, under which projects for thermal power stations with a heat output of 300 megawatts or more must undergo an assessment, must be interpreted as requiring such projects to be assessed irrespective of whether they are separate constructions, are added to a pre-existing construction, or have close functional links with a pre-existing construction. Even where such a project has links with an existing construction, it cannot therefore come under ‘modifications to development projects included in Annex I’, mentioned in point 13 of Annex II (point 12 prior to amendments by Directive 97/11/EC34). The principle expressed in this ruling was incorporated in the text of the EIA Directive by the amendments introduced by Directive 2003/35/EC35, which made an environmental impact assessment mandatory for ‘any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex’(Annex I(24)). It may be useful to refer to the IED, which defines ‘combustion plants’ as ‘any technical apparatus in which fuels are oxidised in order to use the heat thus generated’.

33

See C-435/09, Commission v Belgium, paragraphs 86 and 88. Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, OJ L 73, 14.03.97. 35 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, OJ L 156, 25.6.2003, p. 17–25. 34

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(b) Nuclear power stations and other nuclear reactors including the dismantling or decommissioning of such power stations or reactors(36) (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed one kilowatt continuous thermal load). Annex I (3) (a)

Installations for the reprocessing of irradiated nuclear fuel;

(b)

Installations designed:

Annex I (3) (i) for the production or enrichment of nuclear fuel; (ii) for the processing of irradiated nuclear fuel or high-level radioactive waste; (iii) for the final disposal of irradiated nuclear fuel; (iv) solely for the final disposal of radioactive waste; (v) solely for the storage (planned for more than 10 years) of irradiated nuclear fuels or radioactive waste in a different site than the production site.

Annex I (4) (a)

Integrated works for the initial smelting of cast iron and steel

Integrated works are large industrial complexes and they are characterised by networks of interdependent material and energy flows between the various production units (including sinter plants, pelletisation plants, coke oven plants, blast furnaces and basic oxygen steel-making plants with subsequent casting). (b) Installations for the production of non-ferrous crude metals from ore, concentrates or secondary raw materials by metallurgical, chemical or electrolytic processes

Annex I (4)

Non-ferrous metals are produced from a variety of primary and secondary raw materials. Primary raw materials are derived from ores that are mined and then further treated before they are processed to produce crude metal. The treatment of ores is normally carried out close to the mines. Secondary raw materials used for non-ferrous crude metals include scrap metal, skimmings, flue or filter dusts, drosses and residues. 36

Nuclear power stations and other nuclear reactors cease to be such an installation when all nuclear fuel and other radioactively contaminated elements have been removed permanently from the installation site.

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Annex I (5) Annex I (5)

Installations for the extraction of asbestos and for the processing and transformation of asbestos and products containing asbestos: for asbestos-cement products, with an annual production of more than 20 000 tonnes of finished products, for friction material, with an annual production of more than 50 tonnes of finished products, and for other uses of asbestos, utilisation of more than 200 tonnes per year. Asbestos has been banned throughout the European Union since 1 January 200537. Annex I (6) Integrated chemical installations, i.e. those installations for the manufacture on an industrial scale of substances using chemical conversion processes, in which several units are juxtaposed and are functionally linked to one another and which are: (a) for the production of basic organic chemicals; (b) for the production of basic inorganic chemicals; (c) for the production of phosphorous-, nitrogen- or potassium-based fertilisers (simple or compound fertilisers); (d) for the production of basic plant health products and of biocides; (e) for the production of basic pharmaceutical products using a chemical or biological process; (f) for the production of explosives.

The project category ‘integrated chemical installations’ is divided into six subcategories, which are nearly the same as those listed in point 4 of Annex I to the IED.38 The list of organic and inorganic chemicals in the IED’s Annex I could be used as a non-exhaustive list for the purposes of the EIA Directive as well: Organic chemicals include: (a) simple hydrocarbons (linear or cyclic, saturated or unsaturated, aliphatic or aromatic); (b) oxygen-containing hydrocarbons such as alcohols, aldehydes, ketones, carboxylic acids, esters, acetates, ethers, peroxides, 37

Commission Directive 1999/77/EC of 26 July 1999 adapting to technical progress for the sixth time Annex I to Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (asbestos). 38 It should be noted that the EIA Directive only covers integrated installations, which is a sub-set of that covered by IED. In addition, there are some differences in the descriptions. Firstly, while the EIA Directive refers to basic organic and inorganic chemicals, the IED omits the term basic although this was merely for clarification. Secondly, point 6(d) of Annex I to the EIA Directive refers to production of plant health products and of biocides, while the IED refers to Production of plant protection product or of biocides (point 4.4, Annex I).

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Annex I (6)

epoxy resins; (c) sulphurous hydrocarbons; (d) nitrogenous hydrocarbons such as amines, amides, nitrous compounds, nitro compounds or nitrate compounds, nitriles, cyanates, isocyanates; (e) phosphorus-containing hydrocarbons; (f) halogenic hydrocarbons; (g) organometallic compounds; (h) plastic materials (polymers, synthetic fibres and cellulose-based fibres); (i) synthetic rubbers; (j) dyes and pigments; (k) surface-active agents and surfactants. Inorganic chemicals include: (a) gases, such as ammonia, chlorine or hydrogen chloride, fluorine or hydrogen fluoride, carbon oxides, sulphur compounds, nitrogen oxides, hydrogen, sulphur dioxide, carbonyl chloride; (b) acids, such as chromic acid, hydrofluoric acid, phosphoric acid, nitric acid, hydrochloric acid, sulphuric acid, oleum, sulphurous acids; (c) bases, such as ammonium hydroxide, potassium hydroxide, sodium hydroxide; (d) salts, such as ammonium chloride, potassium chlorate, potassium carbonate, sodium carbonate, perborate, silver nitrate; (e) nonmetals, metal oxides or other inorganic compounds such as calcium carbide, silicon carbide. ‘Integrated’, ‘juxtaposed’ and ‘functionally linked’ The first guidance on ‘integrated’, ‘juxtaposed’ and ‘functionally linked’ was provided by case law (see Case C-133/94, Commission v Belgium).

The Court ruled that ‘whether a chemical installation is integrated does not depend upon its processing capacity or on the type of chemical substance processed in it but on the existence of interlinked production units constituting in terms of their operation a single production unit’. It should be noted that this definition applied before Annex I(6) was amended by Directive 97/11/EC.39 Therefore, the basis for interpretation of ‘integration’ would be that various units are present and a linkage between various parts of a chemical plant exists. The functional linkage will be primarily via a process pathway, i.e. the various units of the installation serve a common purpose by producing intermediates or input material (precursors, auxiliary agents etc.) for other units. The various elements of the plant will therefore contribute to producing a finished product (or products), although it is possible that part of the intermediates or input materials produced in the plant will also be placed on the market. Additionally, there may be infrastructural linkage (for example, for energy purposes), but this alone does not constitute a functional linkage. The term ‘juxtaposed’ commonly means ‘placed side by side’ or ‘placed next to one another’.

However, given the broad purpose of the Directive, there does not appear to be a requirement for any particular unit to be placed immediately next to another, since precursors may be produced on a different part of the site, and transferred by

39

Annex I(6) to Directive 85/337/EEC prior to amendments referred to ‘Integrated chemical installations’.

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Annex I (6)

pipeline, conveyor or other forms of transfer to a finishing or process area. Such obviously directly associated activities have a functional connection with the other activities carried out on that site and could have environmental effects. ‘Manufacture on an industrial scale’ Annex I(6) contains no quantitative capacity thresholds but only a reference to ‘manufacture on an industrial scale’. Annex I to the IED provides that the Commission is to establish guidance on the interpretation of the term ‘industrial scale’ regarding the description of chemical industry activities described in the Annex. ‘Chemical conversion processes’ Annex I(6) makes reference to manufacture on an industrial scale using ‘chemical conversion processes’. ‘Chemical conversion processes’ imply that transformation by one or several chemical reactions takes place during the production process. This also holds for a biotechnological or biological process that is mostly associated with a chemical conversion (e.g. fermentation). An activity involving only physical processing (for instance, simple blending or mixing of substances that do not chemically react, dewatering, dilution, repackaging of acids/bases) would not be covered.

In comparison, in Annex I to the IED, point 4 defines ‘production’ within the chemical industry as the production on an industrial scale by chemical or biological processing of substances or groups of substances listed under that point.

Use of the term ‘basic’ The term ‘basic’40 does not mean only those chemicals requiring further processing but also certain final (but still basic) chemical products (for instance, synthetic rubbers, dyes and pigments, polymers and synthetic fibres) that can undergo further (non-chemical) processing. The production of a mixture of chemicals could also be considered as the production of ‘basic’ chemicals. For instance, biodiesel composed largely of a mixture of esters would fall under the term ‘basic organic chemicals’ since this relates to the production of esters. The term would however not cover final products that cannot be considered to be ‘chemical products’. For instance, the production of tyres from rubber with other ingredients involves some form of chemical processing without producing a ‘basic chemical product’.

40

It should be noted that the term ‘basic’ is no longer used in the activity descriptions under point 4 of Annex I to Directive 2010/75/EU on industrial emissions.

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Annex I (7) (a) Construction of lines for long-distance railway traffic and of airports with a basic runway length of 2 100 m or more; The Court ruling in Case C-227/01, Commission v Spain, must be considered when interpreting the scope of this project category with respect to ‘lines for long-distance railway traffic’. In this case, the Court concluded that a project concerning the laying of a supplementary railway track of 13.2 km, of which 7.64 km covered a new route, and which was part of a 251 km railway line, falls under Annex I(7). Annex I(7) must therefore be understood to include the doubling of an existing track, which is not to be considered as a mere modification of an existing project.

Annex I (7) (a)

The project formed part of a larger project known as the ‘Mediterranean Corridor’, a 251 km railway line along the Spanish coast from Tarragona to Valencia. The Spanish Government argued that only the section concerned was subject to an assessment and that its length could not be classified as a ‘line for long-distance railway traffic’, in accordance with Annex I(7) to Directive 85/337. The Court rejected that argument outright on the grounds that the effectiveness of the Directive would be seriously compromised, since ‘the national authorities concerned would need only to split up a long-distance project into successive shorter sections in order to exclude from the requirements of the Directive both the project as a whole and the sections resulting from that division’. Hence, in its judgment the Court decided that the fact that the project is only related to a short section of a long-distance route was not relevant. As the new track would obviously create significant new nuisances, there is no need to prove the existence of concrete negative effects — their likelihood is sufficient to decide that the project falls under Annex I.41 As regards ‘airports’, the EIA Directive provides a clear definition.